The Rights of Irish Citizens in the UK after Brexit
Students of the history of the British Isles will know that the UK’s historical relationship with the Republic of Ireland is vastly different from those the UK has with other member states of the European Union. This means that Irish citizens who are present in the UK or wish to come to the UK are in a far more advantageous position than citizens of other EU countries, and this position has been preserved after 31 December 2020.
After the Anglo-Irish Treaty was signed in 1921, which led to the establishment of the Irish Free State, various legal constructs were put in place to preserve the rights of British and Irish citizens who were or wished to become residents in each other’s territories, which led to the creation of Common Travel Area (the ‘CTA’).
When the Republic of Ireland was constituted through the enactment of the 1948 Act, the provisions of the agreements relating to the CTA were transferred and preserved between the UK and the Republic, protecting the reciprocal rights of their citizens. These provisions were preserved after both nations entered into the European Union, and have remained following the exit of the UK from the EU.
Irish Citizens Are Not ‘Aliens’
The CTA arrangements establish that Irish Citizens have a special legal status in the UK (from the briefing announcement of October 2019, see link below):-
“Irish nationals have a special status in UK law which is separate to and pre-dates the rights they have as EU citizens.
In short, the Republic of Ireland is not considered to be a ‘foreign country’ for the purpose of UK laws, and Irish citizens are not considered to be ‘aliens’. Furthermore, Irish citizens are treated as if they have permanent immigration permission to remain in the UK from the date they take up ‘ordinary residence’ here.”
This legislation is now framed in section 1(3) of the Immigration Act 1971, which states that people seeking entry to the UK from the Republic of Ireland are not subject to immigration control. Paragraph 15 of the Immigration Rules and section 9 of the 1971 Act contain further provisions related to the CTA.
Survival of the CTA Post-Brexit
The CTA therefore pre-dates the entry of the UK into the European Union, and the UK and Irish Governments have pledged its survival post-Brexit, see the updated guidance dated 4 Current Legislation Preserves the ArrangementsOctober 2021. At the time of the Brexit negotiations, the two Governments made joint statements to state their commitment to preserving the CTA arrangements (see Memorandum 8 May 2019, Commentary on statement of 8 May 2019) and have issued a briefing paper setting out the arrangements (published 16 October 2019, see link to the full report heading the announcement).
Current Legislation Preserves the Arrangements
The UK’s ‘EU withdrawal’ legislation [the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2020] has a specific passage dedicated to restating the rights of Irish Citizens in the UK once they can no longer rely on their EU rights to free movement. Section 2 of the Bill amended section 9 of the 1971 Act to make this statement. As the Explanatory Note to the Bill explains, “The status for Irish citizens in the Bill supports the wider reciprocal rights enjoyed by Irish citizens when in the UK, mirrored by equivalent provision in Ireland for the treatment of British citizens who are resident there.”
It should be noted that the Bill contains a significant limitation to these rights. As the Explanatory Notes state (at paragraph 12), rights to enter and remain in the UK are to be preserved for Irish Citizens “unless they are subject to a deportation order, exclusion order or an international travel ban”.
Therefore whilst the Republic of Ireland continues to firmly assert its commitment to membership of the European Union in direct contrast to the UK, both nations have provisions to preserve the reciprocal rights of their citizens present in each other’s territories.
It is to be noted that notwithstanding the current discussions involving trade and Northern Ireland, the CTA arrangements stand and are preserved in the Withdrawal arrangements.
The following are FAQs about the CTA and the rights it conveys:-
What Exactly Is the Common Travel Area?
Essentially it is the territories of the Republic of Ireland and the United Kingdom combined, (including the Isle of Man and the Channel Islands. Citizens of either country enjoy the privileges accorded by the CTA.
Will Irish Citizens Need Any Sort of Permit to Come to Live and Work in the UK?
No, Irish Citizens who come to reside in the UK are considered to be ‘settled’, and therefore there are no requirements to obtain a work or residence permit. They are able to move freely, as are UK Citizens, between the two nations which are parties to the CTA (i.e. the UK and the Republic of Ireland). This means that when Irish citizens come to live in the UK they automatically acquire what is known as ‘indefinite leave to remain’ or ‘settled status’ granted to other nationalities who are ‘settled’ in the UK. Irish and UK citizens can work within either the UK or Ireland, including entering into self-employment. Both governments are working towards continuing to recognise professional qualifications issued in either country.
Can Irish Citizens Continue to Come to Study in the UK?
Yes, and the guidance states that both governments are working to ensure citizens in either country have the right to apply for student loans and other access to education schemes.
Do Irish Citizens Have the Right to Access the Social Security System or Social Housing in the UK?
Yes, both governments are committed to preserving the rights of their citizens to access benefits, pensions, social housing, etc in either country. The guidance to the rights of Irish Citizens to the UK’s social security system can be found here, and it is stated in the CTA guidance that if working the citizen will be subject to only one set of social security legislation, that of the country where they work.
Can Irish Citizens Access the NHS Without Charge?
Yes, they have the same rights as British citizens to access the NHS, and whilst visiting the UK they have the right to access the NHS if needed, provided proof of Irish nationality can be provided (such as an Irish passport, see below) – there is no need to produce any equivalent of the European Health Insurance ( ‘EHIC’) Card.
Can Irish Citizens Vote in the UK?
Yes, this unique arrangement means Irish Citizens can vote in UK elections, both national and local, as can UK Citizens in Ireland. However as UK Citizens are no longer EU Citizens, they are likely to be precluded from voting in Irish European elections.
What Documents Are Needed for Irish Citizens to Prove They Are Entitled to the Benefits of the CTA Arrangements?
Ideally an Irish passport, which is of course photo identification as well as proof of nationality. The Irish authorities have provided the following guidance:-
“The Common Travel Area means that there are no passport controls in operation for Irish and UK citizens travelling between the 2 countries. You do not need to have a passport in order to enter the other country. However, all air and sea carriers require some form of identification and some regard a passport as the only valid identification. Immigration authorities may also require you to have valid official photo-identification which shows your nationality. As you are being asked to prove that you are an Irish or UK citizen who is entitled to avail of the Common Travel Area arrangements, it is advisable to travel with your passport.”
Did Irish Citizens Have to Register With the European Settled Status Scheme (The ‘EUSS’) To Stay or Return to the UK?
No, unlike other EU citizens, there was no requirement for Irish Citizens to register under the EU Settlement Scheme, however see below in relation to the preservation of the status of non-EEA family members. The UK Government says that Irish Citizens were entitled to register if they wished.
Should an Irish citizen wish to make an application to the EU Settlement Scheme this application would be a late application, as the deadlines for applying to the Scheme have passed’ see our previous post which gives information about the grounds for making a late application to the EUSS.
Can Non-Irish and Non-UK Family Members of Irish Citizens Rely on the CTA?
No. The CTA does not provide for non-Irish and non-UK family members to reside with Irish Citizens in the UK. If, and only if the Irish citizen was present in the UK before 31 December 2020, family members will need to apply for a Family Permit for entry under the European Settlement Scheme (the ‘EUSS’).
The CTA guidance states that Irish citizens will need to be able to prove that they were continuously resident in the UK prior to 31 December 2020 in order to support an application from existing non-Irish and non-UK family members who want to remain in the UK them, or who wish to join them in the future, Registration under the EUSS would provide such proof, although the guidance says “There will be many ways to (sponsor family members) without (the Irish Citizen) applying to the EU Settlement Scheme.”
The guidance goes on to provide the following advice to the Irish sponsor:-
“You might wish to consider retaining documents such as payslips, bank statements, utility bills, tenancy agreements or other dated documents which display your UK address, as these are the types of evidence that will be required in support of a future application for your close family member to join you.”
However, if the Irish Citizen was not resident in the UK before 31 December 2020, their non-Irish/UK Citizen family members will need to apply for entry clearance to enter the UK with family visas; the guidance says the following:-
If you have family members who are not Irish or British citizens, they’re not covered by CTA arrangements. You can bring family members to the UK on a family visa in the same way as a British citizen, or they may be eligible to apply for the EU Settlement Scheme.
Your family members may also be able to come to the UK if you’re:
It is important to note what documentation is needed for family members of Irish citizens to travel in and out of the UK, especially now that the use of European ID cards to enter the UK is no longer permitted. The guidance says the following:-
“Other nationalities travelling within the CTA remain subject to national immigration requirements. You need to check if you need a UK visa if you’re not British or Irish and are travelling to the UK from Ireland.
EU, EEA or Swiss citizen family members cannot use an EU, EEA or Swiss national ID card to enter the UK unless they:
- have settled or pre-settled status under the EU Settlement Scheme, or Jersey, Guernsey or the Isle of Man’s settlement schemes
- have an EU Settlement Scheme family permit, or the equivalent from Jersey, Guernsey or the Isle of Man
- have a frontier worker permit
- are an S2 Healthcare Visitor
- are a Swiss national and have a Service Provider from Switzerland visa
In these cases, they can continue to use their national ID card to enter the UK until at least 31 December 2025.”
It should also be noted that if non-EU and non-UK family members of Irish citizens obtains permission to reside in the UK, either under the EU Settlement Scheme or under Appendix FM, and then wishes to enter or visit countries in the EU (including Ireland), they will need to meet the relevant EU entry requirements.
Contact our Immigration Barristers
For expert advice regarding the rights of Irish citizens and their family members in the UK, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.